High Court Decision
On 30 July the High Court of Australia made the following decision on the matter known as the Blue Mud Bay Case.
The High Court has partially accepted the Northern Territory Government’s appeal in the Blue Mud Bay fishing case by confirming the Fisheries Act NT applies to all waters. This enables the Northern Territory Government to manage and regulate fishing in coastal regions.
As a result of the High Court decision, current permit arrangements that enable entry to waters on Aboriginal lands will remain in place for at least the next 12 months while permanent arrangements between all relevant stakeholders are finalised.
The High Court decision means that:
For recreational fishing
- All rules under the Fisheries Act NT apply and will be enforced by the NT Police.
- The temporary fishing permits granted by the Land Councils, which will remain in place for at least the next 12 months, enable access to continue and allow for long-term arrangements to be negotiated.
For commercial fishing and fishing tour operators
- All rules under the Fisheries Act NT apply and will be enforced by the NT Police.
- The temporary fishing permits granted by the Land Councils, which will remain in place for at least the next 12 months, enable access to continue and allow for long-term arrangements to be negotiated.
Permits are required to enter and remain on Aboriginal land, including waters overlying Aboriginal land. This applies to approximately 80% of the Territory coastline and tidal rivers but not Darwin Harbour (refer to maps).
History of Legal Proceedings
30 July 2008 – The High Court made the decision on the Blue Mud Bay case.
4 December 2007 - The High Court heard the NT Government’s appeal regarding the Federal Court’s decision on the Blue Mud Bay fishing case.
30 March 2007 – The NT Government filed an application for special leave to appeal to the High Court.
16 March 2007 – The Federal Court declined to stay or suspend its decision pending a High Court appeal since, having declared the law, it had no power to order that the law was not in effect.
2 March 2007 – The Federal Court held on appeal that the licensing system under the Fisheries Act (NT) did not apply regarding commercial fishing in tidal waters overlying Aboriginal land (ie freehold) – being the intertidal zone and tidal rivers.
The Federal Court held that the power to grant commercial (and recreational) fishing licences regarding tidal waters overlying Aboriginal land was instead vested in Aboriginal Land Trusts under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
This outcome flowed from the Federal Court's finding that a grant of Aboriginal land included the right to take fish from overlying tidal waters, with the public right to fish being abrogated.
